Section 15B — Abolition of status of illegitimacy

Family Law (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:55 pm on 15th December 2005.

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Photo of Murray Tosh Murray Tosh Conservative 2:55 pm, 15th December 2005

We resume our consideration of amendments to the Family Law (Scotland) Bill. Group 9 is on the abolition of the status of illegitimacy. Amendment 12, in the name of the minister, is grouped with amendments 13, 14 and 32.

Photo of Hugh Henry Hugh Henry Labour

Amendments 12, 13, 14 and 32 deal with the representations that we received in the wake of amendments to the bill at stage 2 that were designed to abolish the concept of illegitimacy.

Many commentators have expressed their desire to see the concept of illegitimacy removed from Scottish law. However, as illegitimacy impacts on two reserved areas—succession to hereditary titles and the granting of arms—it is not within the competence of the Scottish Parliament to abolish the concept in its entirety. I will leave it to members' imagination as to who might still be classified as illegitimate.

The provisions that were introduced at stage 2 attempted to achieve the retrospective abolition of illegitimacy from Scots law with a saving provision that the abolition does not affect those reserved matters. However, since the amendments were made, a couple of points have been brought to our attention that require further consideration.

The first concerns new section 1(4) of the Law Reform (Parent and Child) (Scotland) Act 1986, as introduced by section 15B of the bill. It has been argued that the provisions in subsection (4), which explains how references to enactments and deeds that were passed prior to the commencement of section 15B are to be read, are too narrow and run the risk of missing out people who are currently regarded as legitimate. Although the risk is small, it is unacceptable. Amendment 12 provides that the changes made by the bill will not affect enactments or deeds that were passed or made before the commencement of section 15B. Although that represents a shift in policy from a retrospective to a prospective abolition, it provides much-needed clarity and ensures that the position is both straightforward and unambiguous. Amendment 32 is an additional repeal that is made necessary by that change.

Secondly, questions were raised about the relationship between the removal from the law of declarators of legitimacy, illegitimacy and legitimation and the reserved matters of succession to or devolution of hereditary titles. It was drawn to our attention that, although the existing saving provisions in the 1986 act refer to the titles and the way in which they may transmit on death, they do not extend to the means by which a person may establish whether there is any entitlement to such transmission. Amendments 13 and 14 allow for the retention of such actions in the limited circumstances that there is a connection with the succession to or devolution of a title, coat of arms, honour or dignity that is transferable on the death of the holder.

I move amendment 12.

Amendment 12 agreed to.

[Amendments 13 and 14 moved—[Hugh Henry]—and agreed to.]